A Court Case That Challenges the Position of Sharita Law in Greece
A case adjudicated by the European Court of Human Rights31 raised legal questions regarding the validity of the public will drafted by a Muslim Greek citizen, resident of Thrace, and the right of his heir to enjoy the right to property.
The Court of Cassation upheld that a public will, drafted by a Muslim Greek citizen, is not valid, as SharLa law is mandatorily applicable. The Court quashed the Court of Appeal's judgment (No 392/2011, which upheld the First Instance Court judgment No 50/2010) that said that any citizen has access to civil courts and that civil law is applicable to all.In effect, the Court of Cassation deprived the testator of his right to dispose his property to his wife, because a bequest in favour of close relatives is not valid under Islamic law. By the same judgment the Court of Cassation denied to his wife (the Applicant) access to (non-Sharita) civil law. It upheld this inflexible stance, thus violating fundamental rights stemming from both the Greek Constitution and the Convention regarding a fair trial related to a civil dispute (Art. 6, par. 1). In other words, the Court of Cassation declined to apply the relevant universal civil law which is (or should be) applicable to all: According to Art. 20 par. 1 of the Constitution anyone has the right to “legal protection” by the courts, and according to Art. 94 par. 3 “civil disputes are submitted to the civil courts”.
The case raises general issues of compatibility of Sharita law within the Greek constitutional order, and human rights norms set by the echr and other international instruments, all of which ought to have precedence according to art. 28 par. 1 of the Constitution. The core issue of this case pertains to the position of a series of judgments that denied Muslims of Thrace access to the Greek Civil Code.
It has to be stressed that Muslim sacred law is not a source of law for civil courts, but applicable only by the Sharita courts, according to article 5 of Law 1920/1990.
Moreover, no law provides that SharLa law can be applied to any litigant who takes recourse to the civil courts. Indeed there has been a long discussion of whether the jurisdiction of the mufti should be mandatory or concurrent. In a series of cases the Court of Cassation has ruled that the sacred law has to be applied mandatorily to Muslims.[261] [262] On the other hand, the Court of Appeal of Thrace, in his decision no. 642/2009, upheld that a Muslim can draft a public will,just like any other Greek citizen. It appears that the Court of Cassation has been protecting the status quo of so-called ‘minority protection' by not allowing the very minorities the protection of their choice, namely Greek Civil law. Under this restrictive and segregational approach, the SharLa law and the mufti's jurisdiction are being interpreted as exclusive. The Commissioner for Human Rights of the Council of Europe also made reference to the strict implementation of Muslim law in Greece:33The Commissioner is aware that the decision to proceed to the application of SharLa Law in family and inheritance law matters may be taken by members of the Muslim minority in Thrace, who have, in principle, the right to choose between Greek civil law and SharLa Law. It is to be noted, however, that exceptions occur in matters relating to inheritance law where the SharLa Law is strictly applied.
What is striking is that the Court of Cassation asserts that Muslims have no right to draft any will except those acknowledged by Sharita law and article 5, Law 1920. In other words, they cannot choose to come under the jurisdiction of Greek Civil law. This interpretation cannot be founded on any legal norm, as there is no law that forbids Muslims to draft any other will except those that the mufti would have jurisdiction upon. If there was such a law, it would certainly be considered segregationist. The jurisdictional practice that imposed this segregation should be reviewed for being discriminatory.
The mandatory division of jurisdiction between Muslims and others (namely mostly Christians) is often presented by the Court of Cassation as stemming from international obligations. However there are no such international legal obligations. None of the relevant legal instruments (namely the Treaty of Athens, 1923, the Treaty of Sevres 1920/1923 and the Treaty of Lausanne, 1923) provides for a compulsory jurisdiction of the mufti or for the mandatory applicability of SharLa law, even against the express wish of the members of the minority themselves. Even if such an interpretation was valid in the beginning of the 20th century until 1945, the new international law of human rights stemming from the Universal Declaration of Human Rights (1948) and all relevant legal instruments (UN and Council of Europe), created a new legal order within which all previous engagements have to be interpreted accordingly. There is no need to make detailed reference to treaty international law and the clausula rebus sic stantibus, according to article 62 of the Convention of Vienna (1969). In that sense, Article 4, Law 147/1914 and Law 1920/1991 have to be interpreted under contemporary human rights law, which has been introduced into the Greek legal order. Therefore the mandatory implementation of SharLa does not comply with fundamental legal principles and norms.
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